At the time of the accident, the plaintiff was a passenger in a truck owned by his employer while the truck was en route from a work meeting to a work site.

The plaintiff admitted in discovery that he drove or rode in his employer's vehicles on 90 percent of his workdays. The court rejected the plaintiff's argument that he only used 3 of the employer's 17 vehicles and his argument that his work duties were performed outside of the vehicle.

The court noted that the regular use exclusion has been held to apply to both passengers and drivers. The court also referenced cases where the regular use exclusion was still applied despite the fact that an employee's work duties were performed outside of a vehicle.

The court additionally found no basis for a bad faith claim after finding that the carrier investigated and denied the claim based upon a reasonable reading of the policy.

Friday, December 8, 2017

Here is a LINK to a complimentary copy of the 62 page Tort Talk 2017 Civil Litigation Update booklet that I created for use at the recent Lackawanna Bench Bar Conference as well as the Luzerne County Bench Bar Conference.

The Tort Talk 2017 Civil Litigation Update was created from the Tort Talk posts pertaining to notable decisions handed down over the past year or so and is offered here free of charge for the readers of Tort Talk.

To the extent you may have a desire to pay it forward as they say, I would politely propose considering a small donation to the charity of your choice, your local Pro Bono Office, or perhaps to the Children's Advocacy Center in Scranton which is a private non-profitable charitable organization whose mission is to provide excellence in the assessment and treatment in child abuse and neglect case. The Children's Advocacy Center is located at 1710 Mulberry Street, Scranton, PA 18510. Here is a LINK to their website. Just a thought.

Thanks for reading Tort Talk and for providing me with notable cases to highlight on Tort Talk. All is much appreciated.

In this underinsured motorist benefits action, the insured realized a
recovery from the tortfeasor’s liability insurer, after which the UIM carrier made
a settlement offer.The insured rejected
the UIM carrier’s offer and sued for bad faith and breach of contract.

In the Complaint, the insured enumerated several allegations of the
insurer’s bad faith conduct. The insured asserted the insurer acted
unreasonably and unfairly, failed to advance a reason for its denial of the
full value of the claim, intentionally and/or recklessly disregarded the
insured’s injuries, and refused to pay benefits owed under the policy.The carrier moved to dismiss the bad faith
claim.

The Court stated “[a] complaint must do more than allege a plaintiff’s
entitlement to relief, it must ‘show’ such an entitlement with its facts.”

The
Court held that the undisputed facts only show a disagreement between the
parties to negotiate and settle the UIM claim. Furthermore, “[t]hese facts do
not show that [the insured] has a plausible claim for bad faith because they do
not shed light on the reasonableness of [the insurer’s] actions.”

The Court reasoned that the insured’s allegations are merely conclusory and
are thus insufficient to state a claim for bad faith. The Court then dismissed
the bad faith claim, but gave the insured twenty days leave to amend its
complaint.

I do not have a copy of this case.

I send thanks to Lee Applebaum of the excellent Pennsylvania and New Jersey Insurance Bad Faith Case Law Blog for bringing this case to my attention.

Tuesday, December 5, 2017

According to an article in today's Legal Intelligencer by Max Mitchell, the Pennsylvania Supreme Court issued an Order on November 29, 2017 agreeing to hear an appeal in the case of Feleccia v. Lackawanna College, No. 359 MAL 2017 (Pa. 2017), which involved the issue of what standards colleges have to adhere to in order to meet their duty of care towards student-athletes engaged in college sports.

The Feleccia case arose out injuries to two college students at a pre-season football practice.

At the trial court level in Lackawanna County, Judge James A. Gibbons ruled on a motion for summary judgment that waivers of liability executed by the athletes barred their recovery. The trial court also ruled that the student-athletes had assumed the risk of their own injuries in playing college football. Here is a LINK to the Tort Talk post on the trial court decision.

The Pennsylvania Superior Court reversed after finding that issues of fact precluded the entry of summary judgment. The Tort Talk post on that decision can be viewed HERE

The Pennsylvania Supreme Court noted that the more specific issues presented by the case involved whether colleges are required to have medical personnel on hand at athletic events, and whether clauses releasing the school from any and all liability is enforceable.

The Supreme Court's Order granting the appeal and stating the issue can be viewed HERE.

Source: "Justices Take Up Case on Colleges' Duty of Care to Student-Athletes," by Max Mitchell of the Legal Intelligencer (Dec. 5, 2017).

In the case of Shiflett v. Lehigh Valley Health Network,
Inc., 2017 Pa. Super. 354 (Pa. Super. Nov. 9, 2017 Solano, Scogan, and Platt, J.J.)
(Op. by Solano, J.), the court upheld a liability verdict in favor of a
Plaintiff in a medical malpractice case but sent the case back for a new trial on certain issues of
damages.In its decision, the court noted
that the Plaintiffs were improperly allowed to amend their Complaint to assert
a new cause of action after the statute of limitations had expired.
The Superior Court found that the new theory was based on a different time
period and different facts that were not at issue in the original
Complaint.In this regard, the Superior
Court noted that vague, generalized negligence allegations could not establish
a relation back to the original Complaint, particularly where, as here, the
Defendants properly filed Preliminary Objections to those allegations.The Superior court sent the case
back to the trial court for a new trial on damages as the general verdict on
damages that was entered in the first trial could not be separated into amounts
that were related to the proper time periods not barred by the statute of
limitations.The court noted that the
new trial would be limited to damages because the error on the time barred claims did
not affect the liability issues on the other claims.

Monday, December 4, 2017

The below article written by my associate attorney, Stephen T. Kopko, and myself appeared in the November 16, 2017 edition of the Pennsylvania Law Weekly. It is republished here with permission.New Law: Mandated Coverages for Uber and Lyft Vehicles

By Daniel E. Cummins and Stephen T. Kopko | November
16, 2017

Pennsylvania Law Weekly

Recent news stories have emphasized the emerging
trend of transportation network companies, such as Uber and Lyft, around the
world. These types of ride-sharing companies are continuing to develop across
the commonwealth of Pennsylvania as well.

Recent news stories have emphasized the emerging
trend of transportation network companies, such as Uber and Lyft, around the
world. These types of ride-sharing companies are continuing to develop across
the commonwealth of Pennsylvania as well.

This increasing use of transportation network
companies by the public led the Pennsylvania General Assembly to pass
legislation last to regulate such businesses. Of note are the statutory
requirements for insurance coverages mandated for transportation network
companies, such as Uber and Lyft, and their drivers.

A
New Law

Senate Bill 984 was signed by Gov. Tom Wolf on Nov.
4, 2016. This law relates to the operation of ride-sharing companies in the
commonwealth of Pennsylvania. Under this bill, certain sections of Pennsylvania
statutes were amended to include provisions and regulations related to these
ride-sharing companies.

The new law can be found at both 66 Pa.C.S.A.
Section 2601, et al., and 53 Pa.C.S.A.§57A01, et al., and is titled “Transportation Network Companies.”

The new law defines what a transportation network
company is and identifies the relevant driver(s) included under the ambit of
the statute. This new law also outlines a list of qualifications and standards
that the company must meet before being permitted to operate in the
commonwealth of Pennsylvania.

Insurance
Coverage Requirements

The new law also outlines the insurance coverage
that either the driver of a ride-sharing vehicle must possess, or that the
transportation network company must provide, to cover both the driver of the
vehicle and any passengers that may use the service.

The “financial responsibility requirements” and the
“Insurance requirements” mandated under this new law can be found at both 66
Pa.C.S.A. Section 2603.1 and at 53 Pa.C.S.A. Section 57A07. The language of
each statute is essentially identical.

According to the provisions under 53 Pa.C.S.A. 57a07
(a), a “transportation network company driver or transportation network company
on the driver’s behalf shall maintain primary automobile insurance that
recognizes that the driver is a transportation network company driver or
otherwise uses a vehicle to transport passengers for compensation.”

The new legislation then breaks down different
scenarios and identifies what insurance mandates apply to each situation. These
scenarios include where the driver of the vehicle does not have passengers and
is logged into the transportation network company network (presumably applying
to the situation where the driver is on the way to pick up a fare), and where
the driver of the vehicle does have passengers.

Under the statutory language found at 53 Pa.C.S.A.
57a07(b) or 66 Pa.C.S.A. Section 2603.1(a)(2), where an Lyft or Uber driver is
logged onto the digital network and is able to receive transportation requests
but is not yet actually engaged in a prearranged ride, that driver must be
covered by a policy providing bodily injury liability coverage of $50,000 per
person/$100,000 per accident, along with $25,000 in property damage coverage.
The insurance policy covering this scenario is also required to offer first
party medical benefits coverage of at least $5,000 for the driver and $25,000
for any pedestrians injured.

Under the separate scenario where a Lyft or Uber
driver has been engaged in a prearranged ride and does have a passenger in the
vehicle, the statutory language found at 53. Pa.C.S.A. 57a07(c) and 66
Pa.C.S.A. Section 2603.1(a)(3)requires
that the applicable liability policy contain coverage of at least $500,000 for
death, bodily injury and property damages claims. The policy must also provide
for first party medical benefits coverage of at least $5,000 for the driver and
$25,000 for any passengers or pedestrians injured.

These coverages, separate from the driver’s
inapplicable personal automobile insurance coverage, may be secured or supplied
either by the driver of the car, the transportation network company, or any
combination of the two, see 53 Pa.C.S.A 57a07 (d); 66 Pa.C.S.A. Section
2603.1(a)(2)(iii);66 Pa.C.S.A. Section
2603.1(a)(3)(iii).

Priority
of Coverages

One issue that has arisen with companies such as
Uber and Lyft is the extent to which an insurance carrier providing personal
automobile insurance coverage to a person who chooses to use a personal vehicle
in a ride-sharing business capacity may deny coverage under that policy.

Importantly, 53 Pa.C.S.A57a07 (f) and 66 Pa.C.S.A.
Section 2603.1(a)(4)both provide, as
follows: “Primary insurance. Coverage under an automobile insurance policy
maintained under this section shall be primary and not be dependent on a
personal automobile insurer first denying a claim nor shall a personal
automobile insurance policy be required to first deny a claim.”

As such, the statutory framework confirms that a
Lyft or Uber driver’s separate personal automobile insurance coverage typically
will not come into play if the driver is involved in an accident resulting in
personal injuries or property damages.

This Pennsylvania law specifically provides that
carriers that write personal automobile insurance in the commonwealth may
exclude coverage, including liability coverage, property damage coverage, along
with UM/UIM benefits and first party medical benefits coverage, for accidents
involving an Uber or Lyft driver involved in an accident that occurs while its
insured driver is logged into the transportation network company’s network and
seeking customers or is engaged in a prearranged ride with a customer. See53 Pa.C.S.A 57a07 (l)and 66 Pa.C.S.A. Section 2603.1(a)(2). The
law also upholds the right of a carrier who has excluded coverage to also
assert that it has no duty to defend any claims arising out of an accident
involving a Lyft or Uber vehicle as well.

Accordingly, the right of personal automobile
insurance carriers to deny coverage in cases involving accidents arising out of
the use of personal vehicles for transportation network companies has been
upheld in the regulatory scheme passed by the Pennsylvania Legislature.

The law does otherwise also confirm that nothing in
its provisions prevents a personal automobile insurance carrier from providing
coverage for drivers engaged in Uber or Lyft activities should the carrier wish
to sell that type of coverage.

As a protective measure for the public at large, the
law additionally imposes duties upon the transportation network company to
ensure that the mandated insurance coverage is in place prior to allowing a
driver to drive for the company.

The statutes also otherwise provide that where the
insurance that may have been secured by a driver for Uber or Lyft rides has
lapsed or is inadequate, then the insurance coverage maintained by the
transportation network company shall provide the coverage required by this law
and the transportation network company’s carrier would have the duty to defend
the claim.

Other
Notable Provisions

In other notable provisions under the statute, it is
provided that a transportation network company or a driver may not request or
require a passenger to sign a waiver of potential liability for personal injury
or property damage claims.

Nor can the transportation network company require
any of its drivers to sign any waivers for potential liability for personal
injury or property damage claims as a condition for entering into a lease
agreement,see 53 Pa.C.S.A. Section
57A07(m).

It is noted that, as of this time, there has been no
case law handed down interpreting this statute since it was passed almost a
year ago in November 2016. However, it can be anticipated that, as the use of
Uber and Lyft continues to rise in Pennsylvania, insurance coverage decisions
are likely to be generated in the unfortunate situation of an accident
involving such a ride-sharing vehicle.

Daniel
E. Cummins is a partner and civil litigator with the Scranton law firm of Foley
Comerford & Cummins. His civil litigation blog, Tort Talk, can be viewed at
www.TortTalk.com. Cummins also provides
Mediation Services at Cummins Mediation Services.

Stephen
T. Kopko is an associate with the firm who focuses on the defense of auto
accident and premises liability matters.

Friday, December 1, 2017

TREAT OTHERS AS YOU WISH TO BE TREATEDSimply put,
we should treat others as we would wish to be treated in similar circumstances. While zealous advocacy has its place in the practice of law, there is a clear
difference between fighting for one’s client and engaging in unnecessarily
vexatious conduct. Litigating issues, particularly tangential issues, just for
the sake of litigation is a waste of time and energy and has no place in an
upstanding practice of law.

DISCLAIMER

Daniel E. Cummins, Esquire publishes this site for general informational purposes only. The materials in this website do not constitute legal advice, do necessarily reflect the opinions of the law firm of Foley, Comerford & Cummins or its members, are not an indicator of future results, and are not guaranteed to be current, up-to-date, or applicable to your circumstances. Under no circumstances should you rely upon the information contained in this website without first seeking out and securing your own attorney.

This website and the transmission is not in any way intended, and does not operate, to create an attorney-client relationship with any person or entity. No attorney-client relationship will be created with Daniel E. Cummins, Esquire or the law firm of Foley, Comerford & Cummins unless and until you have purposefully sought to retain us, we have had a chance to clear any conflicts, and you receive a letter from us confirming the creation of an attorney-client relationship and explaining the parameters of the relationship. It is also noted that Attorney Daniel E. Cummins and the law firm of Foley, Comerford & Cummins only practice law in the Commonwealth of Pennsylvania.

With respect to the links on this website, they are not intended as referrals to, or endorsements of, those linked sites.

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In creating this website, Daniel E. Cummins and the law firm of Foley, Comerford & Cummins have strived to comply with all legal and ethical requirements. Neither Daniel E. Cummins nor the law firm of Foley, Comerford & Cummins or its members intend to practice law in any jurisidiction where they are not licensed to practice. Daniel E. Cummins and Foley, Comerford, & Cummins DISCLAIM ALL EXPRESS WARRANTIES AND IMPLIED WARRANTIES INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.